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December 21, 2004
Union
of Orthodox Jewish Congregations Joins
in Asking Supreme Court
to Uphold Religious Liberty Statute;
Asks Court to Reject “Newly Contrived
Theories of Originalism
at Odds with
History”
Today, the Union of
Orthodox Jewish Congregations of America (UOJCA) – the nation’s
largest Orthodox Jewish umbrella organization – through its
Institute for Public Affairs, joined with the National Association
of Evangelicals in filing a “friend of the court” brief with the
United States Supreme Court in defense of a federal religious
liberty statute – the Religious Land Use & Institutionalized
Persons Act (“RLUIPA”) -- whose constitutionality is being
challenged by the State of Ohio this term. The brief, filed in the
case of Cutter v. Wilkinson, was principally authored by the
eminent University of Texas law professor Douglas Laycock. The
brief urges the court to reject new theories, which the State of
Ohio has indicated it will advance in this case, purporting to
present “originalist” interpretations of the Establishment Clause
which, Ohio contends, would be cause for invalidating RLUIPA. The
theories assert, first, that the framers of the Constitution
intended for the Establishment Clause to bar special
accommodations or exemptions for religion being enacted by
legislation or regulation; and, second, that the Establishment
Clause was intended to prohibit the federal government from
interfering with the practices of states with regard to laws or
regulations which impact upon religion. The UOJCA/NAE–Laycock
brief squarely refutes these theories through a thorough review of
constitutional history. (The full text of the brief will be
available on-line tomorrow at
http://www.ou.org/public/Publib/briefs.htm.)
The case in which this matter comes before the high court is
Cutter v. Wilkinson. The case involves lawsuits by three prison
inmates against Ohio corrections officials who the inmates claim
violated the religious liberty protections accorded them by RLUIPA;
Ohio contends that the inmates are nothing more than a racist
“gang” claiming religious status in order to shield their illicit
activities. By way of background, RLUIPA was enacted, nearly
unanimously, by Congress in 2000 in the wake of the Supreme
Court’s declaring its predecessor – the Religious Freedom
Restoration Act (“RFRA”) unconstitutional as it was outside of
congress’ power to enact a statute so broad. RFRA sought to
reinstate the highest level of constitutional protection for the
exercise of religious liberty in the wake of a prior Supreme Court
ruling which greatly reduced that level of protection; RLUIPA
sought to do the same, but in the narrower areas of religious
liberty as it relates to state regulation in the context of land
use and institutionalized persons such as prisoners. Thus, RLUIPA
protects those who wish to construct or expand a house of worship
from discriminatory harassment by zoning boards and it urges
prison officials and other overseers of institutions to give
greater deference, as appropriate, to religious accommodation
issues. The UOJCA worked intensively with a broad coalition to
have RLUIPA passed by Congress and signed by President Clinton.
Running counter to the decisions of other federal appellate courts
who have upheld RLUIPA’s constitutionality, the Court of Appeals
for the 6th Circuit ruled RLUIPA an unconstitutional establishment
of religion thus bringing the issue to the Supreme Court this
term.
In connection with the brief filing, Nathan J. Diament, director
and counsel for the UOJCA’s Institute, stated: “Orthodox Jews and
Americans of all faiths have much at stake in the Supreme Court’s
review of this case – their religious liberty. As opposed to
another religion-related case the Court is considering this term
involving symbolic displays, this case will affect the real,
day-to-day lives of religious Americans and their houses of
worship for years to come. Especially, if the newly-contrived
theories of “originalism” our brief refutes are given credence by
the Court, the accommodations which enable religious Americans to
practice their faith daily – whether regarding religious diet,
clothing or holy day observance -- will be imperiled. We trust the
Court will not let this come to pass, will reject these arguments
and uphold the RLUIPA statute."
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